### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20

- 2911 C OMMON C AUSE I NDIANA and I NDIANA S TATE C ONFERENCE OF THE NAACP , Plaintiffs

- Appellees ,

v.
C ONNIE L AWSON , Indiana Secretary of State, et al

. , Defendants

- Appellants

.

____________________ Appeal from the United States District Court for the Southern District of Indiana , Indianapolis Division. No. 1:20

- cv
- 02007

- SEB

- TAB

— Sarah Evans Barker , Judge

.

____________________ S UBMITTED O CTOBER 13, 2020

— D ECIDED O CTOBER 13, 2020

____________________
Before S YKES , Chief Judge , and E ASTERBROOK and B RENNAN , Circuit Judges

. E ASTERBROOK , Circuit Judge . Indiana counts an absentee ballot only if it is received by noon on Election Day. Ind. Code §§ 3

- 11.5

- 4

- 3, 3

- 11.5

- 4

- 10

. A district court held this rule unconstitutional on the ground that the SARS

- CoV

- 2 pandemic , which has led to more use of mail

- in voting nationwide, creates a risk that ballots mailed close to Election Day2 No. 20

- 2911

will not be received on time. Common Cause Indiana v. Lawson , 2020 U.S. Dist. L EXIS 179161 (S.D. Ind. Sept. 29, 2020). The judge issued an injunction requiring the state to count all absentee ballots received by November 13, 2020, ten days after Election Day. The district court’s premise is t hat the Constitution entitles all persons who cast absentee ballots to be free of any risk that the ballot will not count , even if they mail their ballots close to Election Day . Because the pandemic has made additional demands on the Postal Service and inc reased the probability that a ballot mailed near Election Day will arrive afterward , the judge deemed the state’s system unconstitutional. But a recent decision of this court holds that the premise is not correct

— that as long as the state allows voting in person, there is no constitutional right to vote by mail

. Tully v. Okeson , No. 20

- 2605 (7th Cir. Oct. 6, 2020). Tully adds that difficulties ad ributable to the virus do not require change in electoral rules

— not, at least, as a constitutional mader. That some people are unwilling to vote in person does not make an otherwise

- valid system unconstitutional. It is for states to decide what sort of adjustments would be prudent. The SARS

- C oV

- 2 pand emic has caused great loss but is not a good reason for the federal judiciary to assume tasks that belong to politically respon sible officials. A s long as it is possible to vote in person, the rules for absentee ballots are constitutionally valid if they a re supported by a rational basis and do not discriminate based on a forbidden characteristic such as race or sex

. Tully , slip op. 9

– 11, relying on McDonald v. Chicago Board of Election Commissioners , 394 U.S. 802 (1969). It is rational to require absentee votes to be received by Election Day, just as in

- pers on votingNo. 20

- 2911 3
ends on Election Day. Deadlines are essential to elections, asto other endeavors such as filing notices of appeal or tax returns. T hat some ballots are bound to arrive after any deadline does not justify judicial extensions of statutory time limits. See Griffin v. Roupas , 385 F.3d 1128, 1130 (7th Cir. 2004). Counting the votes, and announcing the results, as soon as possible after the polls close serves a civic in terest. Other courts of appeals recently have held that laws seding an Election

- Day deadline for receipt of all ballots are valid during a pandemic, as they are valid without one. See, e.g., New Georgia Project v. Raffensperger , 2020 U.S. App. L EXIS 31405 (11th Cir. Oct. 2, 2020); Ariz ona Democratic Party v. Hobbs , 2020 U.S. App. L EXIS 31677 (9th Cir. Oct. 6 , 2020). We agree with that conclusion. People who worry that mail will be delayed during the pandemic can protect themselves by using early in

- person voting or posting their ballots early. As the Supreme Court observed in Republican National CommiNee v. Democratic National CommiNee , 140 S. Ct. 1205, 1207 (2020), those who act at the last minute assume risks even without a pandemic. Cf. United States v. Locke , 471 U.S. 84 (1985 ). A state satisfies all constitutional requirements by devising a set of rules underwhich everyone who takes reasonable steps to cast an effecti ve ballot can do so. See Frank v. Walker , 819 F.3d 384, 386

– 87 (7th Cir. 2016) ; Luft v. Evers , 963 F.3d 665, 679 (7th Cir. 2020) ; Democratic National CommiNee v. Bostelmann , No. 20

- 2835 (7th Cir. Oct. 8, 2020). During a pandemic a reasonable person entitl ed to vote by mail transmits the ballot earlier than normal or uses another approved meth od. Indiana allows voting from overseas, or by a member of the uniformed services, by fax or email. See Ind. Code § 3

- 11

- 4

- 6 (h)

. It also al-4 No. 20

- 2911
lows voting in person during the f our weeks before Election Day. S ee Ind. Code § 3

- 11

- 10

- 26(f)

. The district court did not find that any one entitled to vote in Indiana would be unable to cast an effective ballot by acting ahead of the deadline or, if necessary, voting in person on November 3

. There is another problem with the distr ict court’s injunction . The Supreme Court insists that federal judges not change electoral rules close to an election. In addition to Republican National CommiNee se e, e.g., Andino v. Middleton , No. 20A55 (U.S. Oct. 5, 2020). We explained in Democratic National CommiNee : The Justices have deprecated but not forbidden all change close to an election. A last

- minute event may require a last

- minute reaction. But it is no t possible to describe COVID

- 19 as a last

minute event. The World Health Organization declared a pandemic seven months ago, the State of Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections ( April and August) during the pandemic. If the judge had issued an order in May based on April’s experience, it could not be called untimely. By waiting until September, however, the district court acted too close to the election.

... Voters have had many mon ths since March to register or obtain absen tee ballots; reading the Consti tution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing. The pandemic has had conse quences (and appropri ate governmental responses) that change with time, but the fundamen tal proposition that social dis tancing is necessary has not changed since March. The district court did not find that any person [au thorized to vote by mail] who wants t o avoid voting in person on Election Day would be unable to cast a ballot in Wisconsin byplanning ahead and taking advantage of the opportunities allowed by state law. The problem that concerned the districtNo. 20

- 2911 5

judge, rather, was the difficulty that could be e n countered by voters who do not plan ahead and wait until the last day thatstate law allows for certain steps. Yet, as the Supreme Court observed last April [in Republican National CommiNee ], voters who wait until the last minute face problems with or wi thout a pandemic. Slip op. 4

– 5. That observation is equally apt in this suit. Substitute “Indiana” for “Wisconsin” and the essential point remains. The state’s motion for a stay is granted. Because recent decisions such as Tully and Democratic National CommiNee do not leave room for ongoing debate about the issue in this case, the injunction issued by the district court is summarily reversed.